How to get a divorce?2018-10-26T08:10:50+00:00

How to get a divorce?

How to get a divorce? This article is meant to provide some clarity for those wondering how to get a divorce?  Or how does the divorce legal process work?  The divorce process can be broken down into simple to understand steps.  It all starts with one spouse filing divorce papers in court.  The papers than need to be served on the other spouse.  Once they are served, the other spouse has twenty days to respond by filing a response in court- keep in mind that this is written by a Tallahassee divorce lawyer, but this simple process and basic rules are similar throughout the country. Next, there is a process called discovery and/or mandatory financial disclosures where the parties learn about the other side’s positions/arguments.  Usually, the parties will be required to mediate.  If the parties are unable to settle, they will then proceed to trial (usually after conducting some additional discovery).

Of course, the devil is in the details.  So lets look a little closer at what you need to know about how to get a divorce.  It all starts with the divorce papers (i.e. the initial “pleadings”).  The pleadings must put all parties on notice of the relief being sought, or the relief may not be granted. There is an opportunity to receive temporary relief, but this must be requested in the initial pleading for the dissolution of marriage. It is up to the court to award certain forms of relief as established by the pleadings. Jurisdiction is the authority given by law to a court in order to try cases and rule on legal matters within a particular geographic area and over certain types of legal cases. It is essential to determine which court has jurisdiction before a lawsuit is filed.  There have been numerous cases that result in a reversal of an award, such as alimony or child support, because the pleading was not carried out properly. With that in mind, lets look at some additional elements and ancillary pleadings (other papers filed along with the petition and/or answer) that should be included with the initial petition to begin a legal proceeding. Below is a checklist of everything you and your attorney may be responsible for completing- since I am a Tallahassee divorce lawyer, this will refer to required elements and pleadings in Florida, but generally, rules are similar throughout the country.

  • Specific Claims of Residency. One of the parties must live in Florida for at least 6 months prior to the filing of the petition. If a party split equal time between Florida and another residence, residency would be granted at whichever residence was found as the chief place of household affairs. When asking how to get a divorce, keep in mind that each state has different residency requirements to allow for divorce jurisdiction.
  • Include All Relevant Parties. If grandparents are seeking to help one party get sole custody of a child, they do not have grounds unless they have been included as a party to the petition. Awards from corporations will not be granted either if the corporation is not listed as a party.For those contemplating how to get a divorce without an attorney, keep in mind that most times there will only be two relevant parties.
  • Notice of Social Security Numbers. A notice of Social security numbers must be included in the initial filing.This requirement is noted for Florida residents considering ho to get a divorce, but similar pleadings are required in other states.
  • Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA has specific requirements that states certain information be provided by every party in a proceeding concerning custody of a child. The information required must be presented under oath through a verified pleading or attached affidavit. The court also must approve or create a parenting plan in a case involving a minor child. The parenting plan can be created by the parents before a ruling, and approved by the court, or the court will create its own parenting plan for the parents to follow. The court will grant shared parental responsibility unless it is shown to be detrimental to the child. The court may give sole responsibility of certain issues such as health care or education to one parent.When minor children are involved, the question of how to get a divorce is always more complicated.  The UCCJEA is required by a model statute that every state has adopted to make it easier to determine which state has jurisdiction over child custody.
  • Request for Confidential Filing of Address. If domestic violence is an issue, and a party wishes to keep their address secret from the other party.
  • Notice of Limited Appearance. This is required if a lawyer and party wish to limit representation to only specific proceedings or particular issues.
  • Notice of Related Cases. If there is another case involving the parties, the jurisdiction of the case may be affected and an order in a new case may conflict with a proceeding in another case.
  • Grounds for Divorce. Whether it be that the marriage is irretrievably broken, or that one of the parties is mentally incapacitated, grounds for divorce should be included in the initial petition.
  • A Copy of any Agreement. If any agreement regarding relevant material is made prior to any hearings or judgments, an affidavit of the agreement should be included in the initial pleading. Agreements pertaining alimony or partition of property are examples. As divorce lawyers in Tallahassee and throughout the State of Florida know, if your allegations refer to a writing, it is required to attach a copy of the writing to the petition.
  • A Request for Equitable Distribution. It is best practice to include a request for equitable distribution of all marital assets and liabilities. The court is obligated to separate marital assets and liabilities and distribute them based on factors found in Florida Statute 61.075(1). After equitable distribution, alimony is determined. The court is in charge of making equitable distributions. The court separates all marital assets and liabilities and distribute them based on requirements found in Florida Statute 61.075(1). Once the court divides the assets and liabilities, it makes a ruling on alimony. Divorce lawyers in Tallahassee often refer to the acronym PEACE, which refers to the Court’s practice to start with Parenting and then decide Equitable Distribution, Alimony, Child Support, and Everything else in that order.
  • Alimony. A pleading stating one party’s need and the other party’s ability to pay, and the type of alimony sought are usually sufficient for a petition. You must plead for alimony in the petition for dissolution of marriage or the court cannot grant it. There are five different types of alimony that the court can reward: 1) Permanent, 2) Rehabilitative, 3) “Bridge the Gap”, 4) Lump sum, and 5) Durational. Permanent alimony is used primarily for support and based on need of receiving party and opposing party’s ability to pay. Permanent alimony ends at death of the payer or remarriage of the recipient. Rehabilitative alimony is used to support the receiving spouse to gain training to become self-supported. This requires a plan of rehabilitation and is not ended by remarriage. Bridge the gap alimony is intended to smooth the gap between high standard of living during marriage to level of living lifestyle the recipient can self-support. Lump sum alimony requires a finding or special circumstance that permanent alimony would not be able to help with. Durational alimony is awarded when permanent alimony may be deemed inappropriate. Durational alimony offers a financial reward for a set period of time, no longer than the length of the marriage.  As Tallahassee divorce attorneys, we have repeatedly seen the Florida legislature propose (and sometimes pass) legislation to create a formula to standardize alimony (similar to child support), but such measures have not yet made it to law. Alimony is often a major concern when considering how to get a divorce because of the financial strain divorce causes almost all parties.
  • Claim for Suit Money/Attorney’s Fees/Temporary Relief. A request for suit money and fees must be made prior to the end of litigation or the claim will be waived. The best practice is to include it in the initial petition. If requested, your Tallahassee divorce lawyer will give the court a notice of estimated fees. Temporary relief should also be requested to be able to receive it as soon as possible during the time the proceedings take place. Temporary relief can include any type of traditional reliefs or any type of relief that the case dictates. It is an advantage to add temporary relief to the initial pleading because courts will be aware of the entire circumstances of the entire pleading, rather than just the evidence presented in a motion for temporary relief. The court may reward temporary relief to one party, requiring a party to continue financial help of the recipient party while the proceedings take place. Temporary relief examples can include child support, alimony, or any other types of financial relief.This is one of the first things to consider regarding how to get a divorce.  If you have minor children and don’t live together or one party is very financially dependent upon the other, these issues are paramount in how to get a divorce.
  • Allegation for Need of Child Support. The best practice is to include this allegation for need of child support, along with medical costs that are not covered by insurance, to avoid any uncertainty with the court decisions.
  • Affidavit of Corroborating Witness. May be needed to confirm a break in marriage or residency.
  • Request for Confidential Filing of Address. If domestic violence is an issue, and a party wishes to keep their address secret from the other party.
  • Notice of Limited Appearance. This is required if a lawyer and party wish to limit representation to only specific proceedings or particular issues.
  • Notice of Related Cases. If there is another case involving the parties, the jurisdiction of the case may be affected and an order in a new case may conflict with a proceeding in another case.

So as simple as it may be to explain how to get a divorce, some things are very important to remember.  You must remember to include the correct requests and required elements in your divorce papers. The court is limited to the scope of jurisdiction within the pleading, meaning they cannot give awards of relief that are not requested within the initial petition. The court may allow amendments to the initial pleadings, however there is no guarantee that such a request will be granted.